This blog is mostly devoted to discussing educational policy issues and politics in Utah. This is meant to be a place to gather my research and thoughts into detailed explanations that hopefully add clarity to the discussion of public education. Many of the issues are multi-faceted and need to be examined thoroughly. Thus, some posts will be boring long. Come here looking for what I now understand. I will re-organize and readdress issues as I learn more.

Wednesday, September 3, 2008

Collection of articles on the Beaver County referendum fight and the Attorney General's office gives the opinion that SB53 is unconstitutional

Do you believe Governor Huntsman actually read SB53 before signing it? What about legislators? What about Senator Goodfellow? Was it just cut and pasted from an email from Steve Barth? And this is the shorter of the two referendum change bills...

Posted: 9:42 PM- The Utah Attorney General's Office believes there's a good chance that a new law banning voter initiatives on land-use ordinances is unconstitutional. In an April 29 letter to Sevier County Attorney Dale Eyre - obtained by The Tribune today through an open-records request - Assistant Attorney General Thom Roberts said there is "a serious concern that a court would strike SB53 down as violative of the Utah constitutional provisions concerning initiatives."Roberts wrote that by banning initiatives and referenda on land-use ordinances, the law "appears in direct conflict with the Utah Supreme Court cases" on such voting rights.A group of Sevier County residents, dubbed the Right to Vote committee, turned in 1,536 signatures last Friday to put plans for a coal-fired power plant to a public vote. SB53 took effect Monday. The bill's sponsor, along with the lobbyist credited as the brains behind the developer -friendly measure, defended its purpose. "My legislation was in no way intended to take away the right of the people to petition their government," said Sen. Brent Goodfellow, D-West Valley City. "But I think that right applies to legislative matters, not administrative or executive. I was trying to put into statute what is already in case law." Lobbyist Steve Barth agrees."The court has been very consistent in drawing that line and this was to save people the time and money of a wasted referendum effort," Barth said. One of Barth's clients, Mount Holly Partners, faces extended litigation brought by Beaver County residents who oppose the multi-billion-dollar Mount Holly Club project planned for 1,800 acres in the Tushar Mountains. A 5th District Court judge ruled last July against the residents and their desire to put that development to a public vote. Their attorney, Joel Ban, appealed the case to the Utah Court of Appeals and briefs are expected to be filed this week. Ban said he suspected - but did not know - that developers had turned to the Legislature to try to cut off such citizen ballot movements. "That's typical of these kind of developers," Ban added. "I'm not surprised by anything they've done." Goodfellow's SB53, touted as mostly housekeeping during the recent Legislative session, sailed through with little opposition "No one asked for our opinion on its constitutionality until now," said Attorney General spokesman Paul Murphy. Eyre, the Sevier County Attorney dislikes SB53. And he agrees with the AG's opinion. "It will help the county make its decision," Eyre said, noting that commissioners can either enact the Right to Vote committee's ordinance themselves, place it on November's ballot or reject it. That ordinance would require that all future power plant applications go to a public vote and would also revoke any power permit granted between the filing date of the initiative and the time of the vote. Gov. Jon Huntsman Jr. signed SB53 in mid-March. "It's fair to say that we don't get an AG opinion on every bill that passes," said Lisa Roskelley, the Governor's spokeswoman."Considering it passed with such an overwhelming majority, we thought it was appropriate to sign it into law and if it came to this situation, any judicial clarification would be beneficial." cmckitrick@sltrib.comhttp://www.sltrib.com/news/ci_9200987Beaver County: New law put to the test by developerAttorneys argue that it renders a citizens referendum on a development mootBy Cathy McKitrickThe Salt Lake Tribune

A law that took effect Monday - a law the state Attorney General's Office believes could be unconstitutional - is being used as a developer's argument to get a voting-rights case tossed out of court.When SB53 was going through the Legislature earlier this year, backers called it a "housekeeping" measure that simply put into code established case law. Attorneys for a planned $3.5 billion Mount Holly Club development in Beaver County, however, argue the new law is much more than a technicality. On Tuesday, one day after the new law took effect, lawyers representing Mount Holly Partners LLC, CPB Development LC and Beaver County, filed briefs in the Utah Court of Appeals asking that a lawsuit brought by a group of Beaver residents be dismissed. The attorneys argued that SB53 renders a citizens referendum on the project moot and that the case belongs in the state Supreme Court, not the Court of Appeals.Steve Barth, a lobbyist who claimed credit for the bill, lists Mount Holly as a client. "The 2008 Utah Legislature has enacted revisions to the Utah Elections Code, effective May 5, 2008, which make land-use ordinances of the nature at issue in this case not subject to a referendum vote," the briefs state. In other portions of the documents, the attorneys specifically identify SB53 as the basis of their argument. A message left for the Mount Holley attorneys was not returned Thursday. Attorney Joel Ban, who represents the residents group, said he has 10 days to file his response. "I don't think SB53 is constitutional - that's what I'm sure about," Ban said Thursday. "But in terms of its effect on this case, that's up in the air right now." A letter released by the Utah Attorney General's Office Tuesday in a different voting-rights case - this one in Sevier County - said there is "serious concern that a court would strike SB53 down as violative of the Utah constitutional provisions concerning initiatives." The Beaver County dispute heated up last spring when county commissioners passed an ordinance authorizing the county to enter into a developer's agreement, paving the way for phased construction of 2,000 multimillion-dollar homes around a ski resort and premiere golf course. Members of a long-standing homeowners association went to court to halt the project and gathered 845 signatures to put it to a public vote. Last June, a 5th District judge ruled in favor of the developer, deeming the commission's decision administrative and therefore not subject to referendum. The residents' group is appealing that ruling. The original version of SB53 introduced in the Legislature stated that the voting ban applied to a land-use or zoning matter "administrative in nature." However, before it's first floor vote, that was replaced with broader language. Lincoln Shurtz, legislative analyst for the Utah League of Cities and Towns, helped to craft the substitute version, which passed with minimal opposition. The bill was changed out of concern the original went too far in trying to "draw a bright line between administrative and legislative" actions, Shurtz said. "That line is quite blurry at times," Shurtz acknowledged. cmckitrick@sltrib.com

What does SB53 do?

Lobbyist Steve Barth pushed for legislation to help his client, Mount Holly Partners LLC. In the recent legislative session, Sen. Brent Goodfellow, D-West Valley City, sponsored SB53 and Rep. Kevin Garn, R-Layton, co-sponsored it in the House. Here's what SB53 does: * Bars legal voters of any town, city or county from initiating a land-use ordinance or a change to a land-use ordinance. * Also bars the aforesaid voters from requiring the implementation of a land-use ordinance to be submitted to a public vote.

A developer's legal battle to block a public vote on its plans for apricey ski-and-golf resort in Beaver County took a circuitous and"desperate" detour through the state Legislature, charges an attorneyfor resort opponents. "In what can only be described as a series of desperate acts,[developers] have taken extraordinary measures to try and avoid alegal review of the trial court's conclusions," Joel Ban, attorney fora grass roots group trying to put the Mount Holly project to a vote,wrote in appeal briefs filed Wednesday. "[Developers] hired a lobbyist, pursued an amendment to thereferendum statute and then filed a request to extend the briefingschedule. Knowing that SB53 had been signed by the governor and wouldbecome effective May 5, they nonetheless waited until the last day toact," Ban wrote. Sen. Brent Goodfellow's SB53 - a new law confusing to the pointstate lawyers say it could be unconstitutional - took effect May 5. A day later, CPB Development LC and Mount Holly Partners LLC usedit as the basis to ask that a resident group's appeal get tossed outof court. Ban wants the Utah Court of Appeals to allow the Mount Hollyproject to go to a referendum vote. A lower court, in a complexdecision, ruled it could not. Ban claims the issue is subject to referendum because the countydecision constituted legislative action - the enacting of an ordinanceestablishing the details of the Mount Holly Club developmentagreement. Developers say the appeal should be dismissed, arguing that SB53bans referendums on all local land-use issues. It also claims thestate Supreme Court is the proper forum for an elections dispute. In late April the state Attorney General's Office questionedSB53's constitutionality in a letter sent to Sevier County AttorneyDale Eyre - concerning another right-to-vote effort, this one over acontroversial coal-fired power plant. Assistant Attorney General Thom Roberts cited Article 6 of thestate Constitution, which provides for the people's fundamental rightto legislate through initiative and referenda. That right - viewed as sacrosanct - bucks up against individualproperty rights, said Dan McDonald, an attorney with Smith Hartvigsen,the firm representing CPB and Mount Holly. "More and more, citizen groups who dislike a landowner ordevelopment organize themselves to challenge land-use decisions,"McDonald said. "The Supreme Court has repeatedly recognized that individualproperty rights are important as well as deference to local land-useauthority." McDonald intends to file a quick answer to Ban's brief today -although the court could rule without it. The weighty issues of SB53's constitutionality - and applicationto this case - cannot be ignored, McDonald said. "This has statewide impact and is important enough that we thinkit will percolate to the Supreme Court, no matter who loses in theCourt of Appeals." cmckitrick@sltrib.com

The Utah Constitution says that two groups can make laws: theLegislature and the people. The first group is trying to cut thesecond group out of the process. That isn't right, and the UtahSupreme Court should put a stop to it. This year, the Legislature passed Senate Bill 53, which says thatthe voters of any county, city or town may not initiate a land useordinance or a change in a land use ordinance. That's the right ofinitiative we all learned about in school. For good measure, the Legislature also said that the people maynot require a land use ordinance passed by the local legislative body(city council or county commission) to be submitted to the voters forapproval before it can take effect. That latter process is called areferendum. This bill, which was passed virtually without opposition in theLegislature and signed quickly into law by Gov. Jon Huntsman, is aninsult to the plain wording of the Utah Constitution, which reservesthe rights of both initiative and referendum to the people. In 2002, the Utah Supreme Court commented that "the power of theLegislature and power of the people to legislate through initiativeand referenda are coequal, coextensive and concurrent and share 'equaldignity.'" It follows that the Legislature can't take that power awayfrom the people in defiance of the Utah Constitution. Why would the Legislature do this? To help developers, of course.In the delicate balance between private property rights and communityinterests, the Legislature is putting its thumb on the scale to favorproperty. Private property rights are a foundation of the republic. But whenone property owner does something that profoundly affects hisneighbors, and their property, there's got to be a balancing process.That's where local planning and zoning laws come in. SB53 passed during a bitter fight in Beaver County over theredevelopment of Elk Meadows Resort into the $3.5 billion Mount HollyClub. The citizen effort to make that project the subject of areferendum will provide the test case for SB53 before the Utah SupremeCourt. The outcome of that case also will affect an initiativepetition in Sevier County targeting a proposed 270 megawatt coal-firedpower plant near Sigurd. Both of these projects will have far-reachingeffects on the neighboring communities. In both fights, the people should have the right to seek a directvoice at the ballot box, and the Legislature should not be allowed tomuzzle that voice.